A Model Australian Consumer Code Relating to Defective Goods

Bede Harris

Abstract

Australian consumer law gives inadequate protection to consumers who have purchased defective goods. Surveys show that there is widespread lack of awareness of consumer rights. Detriment is caused to consumers by uncertainty and inadequacies in the law. Most significantly, because the law determines the period for which goods must be durable by applying a test of reasonableness, there is uncertainty about how long particular types of goods should last and, because consumers lack the money, time and persistence to take such matters to court, suppliers are effectively left free to determine the duration of warranties. The paper examines data obtained from consumer surveys and the recommendations contained in the recent Commonwealth Consumer Affairs Advisory Council report. It ends with a proposed model code which would contain a provision imposing on all consumer contracts an implied guarantee that goods were of satisfactory quality. The code would define ‘satisfactory quality’ as including a requirement of durability. Where a consumer brought an action against a supplier for breach of the implied term, the onus would be on the supplier to prove that it was unreasonable for the goods to be durable for the period as the consumer asserted they should be. By imposing the burden of litigation on suppliers wanting to prove the inapplicability of the guarantee (rather than, as at present, placing the burden on consumers to prove that it was reasonable for goods to be durable for a specific period), the law would alter the behaviour of suppliers by extending the period during which they would be prepared to give redress to consumers in order to avoid litigation.

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